One of
the least interesting legal phenomena is a denial of certiorari by the
Supreme Court. The Court has absolute control of its docket, it can
decline to hear a case without explanation, and its denial of review is
legally meaningless and has no precedential effect. However, the recent
cert. denial in Elane Photography v. Willock, a case that presented a
three-way collision between gay rights, religious liberty, and free
speech, is a revealing window on the limits of constitutional lawmaking.
The real issue in the case, the question of how gay people and
religious conservatives can live out their ideals, was obscured by weak
free speech claims. The Court was right to turn the case away.

The
reconciliation of gay rights and religious liberty is an important and
pressing question. But the cert. petition left it out of consideration.
Instead, that question was displaced by weak free speech claims. This
paradoxically meant that the Court could not hope to do justice to any
of the real issues. The case as presented in the petition for cert. was
a zombie: still moving, but without its soul.